|
HCAL 1445/2019
[2024] HKCFI 1094
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1445 of 2019
|
BETWEEN
|
| |
Nguyen Thi Huyen |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
| |
and |
|
| |
Director of Immigration |
Putative |
| |
|
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 26 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with her application on paper.
The applicant
3. The applicant is a national of Vietnam. She was arrested by the police on 14 September 2014 for being an illegal immigrant and upon further investigation by the Immigration Department, she admitted she entered Hong Kong illegally via Mainland China on 10 September 2014. She raised a non-refoulement claim thereafter on 16, 17 and 30 September 2014 on the basis that she would be harmed or killed by a creditor (named Diep) if she is refouled to Vietnam.
4. In short, the applicant obtained a loan from Diep in the sum of 200 million Vietnamese Dong in January 2012 to invest in shrimp business. Initially, the business was doing well but due to poor weather condition, the shrimp business failed in April 2012. In June 2012, Diep went to her home and verbally warn her to repay the loan. There was no physical altercation on this occasion. However, on the next occasion when they visited her home in July 2012, Diep and three of his henchmen threatened to kill her entire family if the loan was not repaid within ten days. There was also no physical assault during this incident. Thereafter, Diep would visit her home on several times and make verbal demands for repayment of the loan. In fear of Diep harming her family, she decided to leave Vietnam made arrangements to go to Hong Kong via Mainland China. Details of her claim are set out at [6] of the Notice of Decision dated 6 January 2017 by the Director (the “Director’s Decision”).
The Director’s Decision
5. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
6. By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that: (i) her alleged risk of being harmed or killed by Diep was assessed to be low as he had never caused her physical harm and only threatened her verbally [12]; (ii) Diep’s threats were intended to pressure her to repay the loan and not to cause her actual harm [12]; (iii) state protection was available [13] – [16]; and (iv) internal relocation was a viable option [17] – [21].
The Board’s Decision
7. The applicant appealed the Director’s Decision to the Board. On 20 February 2019, the Board conducted an oral hearing for her appeal, during which she answered the Board’s questions [4].
8. Having considered the evidence, the Board found the applicant would not be in any substantial future risk of harm under Persecution Risk as she had never been assaulted nor suffered any serious ill-treatment from Diep [29]. Nevertheless, the Board proceeded to consider the issue of credibility for the sake of completeness and in that regard, it held there were several significant problems such as the following: (i) her conduct (eg waiting some six months in China before seeking asylum and sneaking into Hong Kong under a lorry) was inconsistent with someone in need of non-refoulement protection [32]; and (ii) her response to the Board’s queries was evasive and she gave obvious dishonest answers [33.1] – [33.4]. In any event, the Board found the applicant’s evidence to be unreliable; and even if the factual matrices were accepted, the Board held she had failed to establish her claim under any of the applicable grounds of non-refoulement protection. [34].
9. For the above reasons, the Board dismissed her appeal and confirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant has filed Form 86 dated 28 May 2019 for leave to apply for judicial review of the Board’s Decision.
11. The applicant has, in her affirmation, enclosed a copy of the Board’s Decision without raising any specific ground.
DISCUSSION
12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”
15. For the reasons given in paragraph 4 above, the Board found that the applicant failed to establish that she has any real risk of harm by the creditor if she returns to Vietnam.
16. The applicant has raised no valid ground to challenge the Board’s Decision.
17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
18. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated 19th day of April 2024.
| |
(Allen LEE)
for Registrar, High Court
|
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicants:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent to the Applicant
on 19/4/2024
Nguyen Thi Huyen
Applicant’s ref. no:
Nil. |
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19/4/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 5917/17/1/201/V869
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2785/16 (Formerly RBCZ 3001729/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|